3. A natural guardian has no power to release the claim of a ward to an inheritance without the sanction of some tribunal. Ib.

PRACTICE.

See NEW MEXICO, LAWS OF, 1.

PUBLIC LAND.

1. The substantial rights of the defendant were not prejudiced by the ruling of the trial court sustaining the demurrer to the first equitable plea and refusing leave to file the second, and such ruling involved merely a question of state practice. Johnson v. Drew, 93.

2. The evidence in the case shows that the particular lots of land described in the declaration were not embraced in the Fort Brooke reservation when the patent was issued. Ib.

3. A party cannot defend against a patent duly issued for land which is at the time a part of the public domain, subject to administration by the land department, and to disposal in the ordinary way, upon the ground that he was in actual possession of the land at the time of the issue of the patent. lb.

4. The act of Congress of July 5, 1884, c. 214, 23 Stat. 103, concerning the

disposal of abandoned and useless military reservations, has no significance in this case, as the patent had issued and the title passed from the Government prior to its enactment. Ib.

5. The grant which is the subject of controversy in this case was one which, at the time of the cession in 1853, was recognized by the government of Mexico as valid, and therefore is one which it is the duty of this Government to respect and enforce to the extent of one and three fourths sitios. Ely's Administrator v. United States, 220.

6. In Ainsa v. United States, 161 U. S. 208, it was decided, with reference to such grants, that while monuments control courses and distances, and courses and distances control quantity, where there is uncertainty in specific description, the quantity named may be of decisive weight, and necessarily is so if the intention to convey only so much and no more is plain: and this case comes within that rule. Ib.

7. In order to the confirmation of any claim, the Court of Private Land Claims, under the act of March 3, 1891, c. 529, 26 Stat. 854, creating that tribunal, must be satisfied not merely of the regularity in form of the proceedings, but that the official body or person, assuming to make the grant, was vested with authority, or that the exercise of power, if unwarranted, was subsequently lawfully ratified; and the same rule applies to this court on appeal. Faxon v. United States, 244.

8. The Court of Private Land Claims held, in this case, that if the lands which are the subject of controversy belonged to the class of temporalities, it was clear that the treasurer of the department had no power to

make a sale by his sole authority, whether the value exceeded five hundred dollars or not; and if the lands did not belong to that class, nevertheless, there was the same want of power under the laws of Mexico in relation to the disposition of the public domain. This court, concurring with the Court of Private Land Claims, further holds that this is not a case in which the sale and grant can be treated as validated by presumption. Ib.

9. Neither the city of Bismarck, as owner of the town site, nor its grautee Smith, can, under the circumstances disclosed in this record, disturb the possession of the Northern Pacific Railroad Company in its right of way extending two hundred feet on each side of its said road. Northern Pacific Railroad Co. v. Smith, 260.

10. The finding of the trial court, that only twenty-five feet in width has ever been occupied for railroad purposes, is immaterial. Ib.

11. By granting a right of way four hundred feet in width, Congress must be understood to have conclusively determined that a strip of that width was necessary for a public work of such importance, and it was not competent for a court, at the suit of a private party, to adjudge that only twenty-five feet thereof were occupied for railroad purposes in the face of the grant and of the finding that the entire land in dispute was within two hundred feet of the track of the railroad as actually constructed, and that the railroad company was in actual possession thereof by its tenants. Ib.

12. The precise character of the business carried on by such tenants is not disclosed, but the court is permitted to presume that it is consistent with the public duties and purposes of the railroad company; and, at any rate, a forfeiture for misuser could not be enforced in a private action.

lb.

13. A valid grant was made in this case, which it was not within the power of a temporary dictator to destroy by an arbitrary declaration. Camou v. United States, 277.

14. This Government discharges its full duty under the Gadsden treaty, when it recognizes a grant as valid to the amount of the land paid for. lb.

See MINERAL Land.

REMOVAL OF PUBLIC OFFICERS.

1. A court of equity has no jurisdiction over the appointment and removal of public officers, whether the power of removal is vested, as well as that of appointment, in executive or administrative boards of officers, or is entrusted to a judicial tribunal. White v. Berry, 366.

2. The jurisdiction to determine the title to a public office belongs exclusively to the courts of law, and is exercised either by certiorari, error or appeal, or by mandamus, prohibition, quo warranto, or information. in the nature of a writ of quo warranto, according to the circum

stances of the case, and the mode of procedure established by common law or by statute. Ib.

3. If the assignment of soine one to duty as gauger at the Hannis distillery, in the place of the plaintiff, did not work his removal from office, a court of equity ought not to assume to control the discretion which under existing statutes the Executive Department has in all such matters; as interference by the judicial department in such cases would lead to the utmost confusion in the management of executive affairs. lb.

RES JUDICATA.

On the findings and the facts detailed in the statement and in the opinion of this court, it is held that a former judgment of the Court of Claims in an action by Hubbell against the United States in favor of the defendant was upon the same cause of action which is set up in this suit, and, it not having been reversed, or set aside, or appealed from, the claim herein set up is res judicata, and the plaintiff is estopped from prosecuting it in this action. Hubbell v. United States, 203.

RAILROAD GRANTS OF PUBLIC LAND.

See PUBLIC LAND, 10, 11, 12.

SEAL FISHERIES.

1. By the agreement of March 12, 1890, between the United States and the North American Commercial Company, that company contracted to pay to the United States a rental of $60,000 per year, during the term of the contract, for the privilege of killing an agreed number of seals each year, subject to a proportionate reduction of this fixed rental, in case of a limitation in the number; and also a further sum of seven dollars, sixty-two and one half cents for each seal taken and shipped by it. Held, that this per capita tax was not a part of the annual rental, and was not subject to reduction as was the annual rental of $60,000 a year. North American Commercial Co. v. United States, 110.

2. The proviso in the original act for the naming of a maximum number of seals to be taken, which was not to be exceeded, and making a proportionate reduction in the fixed rental in case of a limitation of that number, remained in force through all subsequent legislation and contracts. Ib.

3. Assuming that the company took all the risk of a catch reduced by natural causes, yet when the number that might be killed was reduced by the act of the Government, the company was entitled to such reduction on the reserved rental as might be proper, that is, in the

same proportion as the number of skins permitted to be taken bore to the maximum. Ib.

4. The power to regulate the seal fisheries in the interest of the preservation of the species was a sovereign protective power, subject to which the lease was taken, and if the Government found it necessary to exercise that power, to the extent which appears, the company did not attempt to rescind or abandon, but accepted the performance involved in the delivery of the 7500 skins. Ib.

5. The company cannot maintain its counterclaim for damages for breach of the lease, and the Circuit Court erred in its disposition thereof. Ib.

STATUTE.

A. STATUTES OF THE UNITED STATES.

See ADMIRALTY, 1, 2, 3, 5, 6;

INTERSTATE COMMERCE, 2;

JURISDICTION, A, 10;

CONSTITUTIONAL LAW, 1;

CRIMINAL LAw, 1;

MINERAL LAND, 3, 9;

The New York statutes against usury cannot be interposed by a corpora tion, or pleaded by endorsers of its paper. Hubbard v. Tod, 474.